United States District Court, D. New Jersey
MEMORANDUM OPINION AND ORDER
DOUGLAS E. ARPERT, Magistrate Judge.
This matter comes before the Court on a Motion by Defendant to quash the third-party subpoena served by Plaintiff on Defendant's Internet Service Provider ("ISP"), Comcast Cable ("Comcast") or, in the alternative, to proceed anonymously through discovery. See Dkt. No. 14. Plaintiff opposes Defendant's Motion to quash and does not oppose Defendant's request to proceed anonymously. See Dkt. No. 15. For the reasons set forth below, Defendant's Motion to quash is DENIED and Defendant's request to proceed anonymously until the end of discovery is GRANTED.
On June 19, 2014, Plaintiff filed a Complaint against a "John Doe" defendant identified only by an IP address, asserting a claim for direct copyright infringement. Compl. at ¶ 31-36. Plaintiff alleges that Defendant used a file-sharing protocol called BitTorrent to illegally infringe upon Plaintiff's copyrighted Works. Id. ¶ 11-24. Plaintiff contends that the BitTorrent protocol functions by "break[ing] a [large] file into many small pieces called bits. Users then exchange these small bits among each other instead of attempting to distribute a much larger digital file." Id. at ¶ 13. Each bit is assigned a unique cryptographic hash value, which the BitTorrent client software uses to coordinate the exchange of bits between users who are sharing the larger file in question. Id. at ¶ 15-16. Once a user downloads all of the bits comprising the file, the user's "BitTorrent client software reassembles the bits so that the file maybe opened and utilized." Id. at ¶ 14.
Plaintiff retained an investigator, IPP International UG, to identify the Internet Protocol ("IP") addresses of those alleged infringers who used the BitTorrent protocol to reproduce or distribute the Works. Id . at ¶ 18-23. Plaintiff alleges that Defendant was engaged in sharing certain of the Works, as IPP International UG was able to use the BitTorrent protocol to download one or more bits of those Works during connections with Defendant's IP address. Id. at ¶ 18-24. Plaintiff further alleges that "Defendant downloaded, copied, and distributed a complete copy of Plaintiff's movies without authorization." Id. at ¶ 20.
Given the anonymous nature of the alleged conduct at issue, Defendant was initially only able to identify Defendant by his/her IP address. Accordingly, on July 7, 2014, Plaintiff filed a Motion for leave to serve a third-party subpoena prior to a Rule 26(f) conference. See Dkt. No. 5. On September 8, 2014, the Court granted Plaintiff's Motion. See Dkt. No. 7. However, the Court's Order only allowed Plaintiff to serve Comcast with a subpoena seeking the name and address of Plaintiff and stated that "[u]nder no circumstances is Plaintiff allowed to seek or obtain [Defendant's] telephone number(s) or email address(es)." Id. at p. 6. Subsequently, Plaintiff served Comcast with a subpoena seeking Defendant's identity. Following Plaintiff's service of the subpoena on Comcast, Defendant filed the present Motion seeking to quash the subpoena served on Comcast, or, in the alternative, to proceed anonymously through discovery.
In support of the present Motion, Defendant claims that the subscriber "in control of the IP address being used to distribute Plaintiff's copyrighted movies, may not be the actual, or even the most likely infringer" and that "[a]ny disclosure of information identifying the movant in this case would force them to choose between public embarrassment and a coerced settlement on potentially specious claims." Dkt. No. 14 at p. 11, 13. Defendant further alleges that the disclosure of their personal information is not justified "in cases like this in which plaintiffs use discovery of personal information to coerce settlements." Id. at p. 14. In opposition, Plaintiff denies the use of personal information to "coerce settlement" and claims that even if the subscriber is not the infringer, the information sought by the subpoena is reasonably calculated to lead to the discovery of information necessary to allow Plaintiff to ascertain the infringer's true identity. See Dkt. No. 15. In the alternative to quashing the subpoena, Defendant requests to proceed anonymously, at least through the initial stages of this proceeding. Plaintiff does not object to Defendant's request to proceed anonymously.
A. Motion to Quash
Federal Rule of Civil Procedure 45(d)(3)(A) sets forth the circumstances under which the Court must quash a subpoena. In relevant part, Rule 45 provides that on timely motion, the issuing court must quash a subpoena that: "(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to an undue burden." Fed.R.Civ.P. 45(d)(3)(A)(iii)-(iv). "The party seeking to quash the subpoena bears the burden of demonstrating that the requirements of [Rule 45] are satisfied." Malibu Media, LLC v. John Does 1-15, No. 12-2077, 2012 WL 3089383, at *5 (E.D.Pa. Jul. 30, 2012) (citing City of St. Petersburg v. Total Containment Inc., 2008 WL 1995298, at *2 (E.D.Pa. May 5, 2008)). This has been described as "a heavy burden." Malibu Media, LLC v. Does # 1-30, 2012 WL 6203697, at *2 (internal citations omitted). The Court considers "whether any privilege or protection applies... and whether the subpoena subject Defendants to undue burden." Schmulovich v. 1161 R. 9, 2007 WL 2362598, at *2 (D.N.J. Aug. 15, 2007).
Initially, the Court notes that Defendant has failed to state a reason for quashing the subpoena within the parameters of Rule 45. Instead, Defendant's Motion rests largely on the assertion that Plaintiff is engaging in improper litigation tactics and is only seeking Defendant's personal information to coerce Defendant to settle. However, in the interests of justice, the Court will apply Defendant's arguments to the relevant portions of Rule 45 to determine whether the relief sought by Defendant is proper.
i. Plaintiff's third-party subpoena does not seek privileged or protected information
Defendant claims that the subscriber identified by the subpoena may not be the actual infringer and that disclosing the identity of the subscriber may subject an innocent individual to embarrassment and harassment. While Defendant and subscribers in similar cases may not be the actual infringer, courts have consistently ruled that "Internet subscribers do not have a reasonable expectation of privacy in their subscriber information." Sony Music Entm't v. Does 1-40, 326 F.Supp.2d 556, at 566-67 (S.D.N.Y. 2004) (citing Achte/Neunte Boll Kino Beteiligungs Gmbh & Co. Kg. v. Does 1-4, 577, 736 F.Supp.2d 212, 216 (D.D.C. 2010)). This is because "[I]nternet subscribers have already voluntarily conveyed their subscriber information-name, address, and phone number to their [I]nternet [S]ervice [P]rovider." Malibu Media, LLC v. John Does 1-15, 2012 WL 3089383, at *8 (citing First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241, 257 (N.D.Ill. 2011); Achte/Neunte, 736 F.Supp.2d at 216).
In the present case, Defendant has voluntarily disclosed personal information to Comcast in order to open an Internet account. Accordingly, the Court finds any argument by Defendant that his or her identifying information is so confidential as to establish a ...